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A king is a ruler, the boss of his subjects. He rules his subjects. “We the people” are neither rulers nor subjects, but citizens.

Sovereignty is about the authority that a government has to govern. Back then, if you were a king or an emperor or a warlord, that authority came from the fact that you were the guy wearing the crown and wielding the army. Your legitimacy may have come from military victory, or tradition, or religion; but you were sovereign because of the fact that you had the power.

England had modernized the idea to say it wasn’t the person who had the authority, but rather the institution. Fundamentally, though, it was still the same tautology: parliament was sovereign because it was in charge.

The big change in the Constitution was the idea that the government’s authority didn’t come from the fact that it was governing, but rather that it was delegated from the citizens being governed. The ultimate authority came from the population. Not from individuals, mind you, but from the collective whole.

It was more than just “government by the consent of the governed.” That saying’s about legitimacy, not sovereignty. This was much more. It was truly government “of the people, by the people, and for the people,” as Lincoln phrased it in his Gettysburg address. Even the other democracies of history had still been imposed by a lawgiver. This wasn’t imposed by anyone, but framed by representatives of the people, submitted to popular consideration and debate, and it would stand or fall by the people’s vote. The magnitude and importance of this was well understood by everyone involved, and was still a powerful idea to Lincoln’s audience three quarters of a century later.

In the most important respects, you might say that the people were now the opposite of a king. In fact, I think if you’d suggested to any citizen at the time that the people were “king,” you’d have gotten a bloody nose.

I appreciate the reply you gave me further down regarding my previous responses to this post. I am a little confused though.

You accuse me of spreading disinformation in the two response posts you have now deleted. I guess I just don’t understand what you define as misinformation. I quoted verbatim from a legal work citing cases and judge decisions regarding elements of law which predate the constitution, and, to my knowledge, have not been overturned since. I presented those quotes with my opinion on their relevancy. I never once stated my opinion was fact, but the quotes themselves were verbatim, albeit some parts were cut out for the interest of less typing. I even cited the source the quotes came from, so that they could be fact-checked- though I suppose I didn’t cite properly page and chapter.

So, could you please help me to understand what about what I wrote that was misinformation, and why?

I’m not going to have a back-and-forth about this, for the reasons stated. But look, some of the stuff you posit is very like some of the conspiracy-theory stuff of sovereign citizens and their ilk. It’s so contrary to what the law actually is, that it’s impossible to even debate it rationally. It relies on a version of history that has nothing to do with reality. Sources for its legal arguments are either irrelevant, invalid, or misconstrued. Posting stuff like that here is like going into a science class about why the sky is blue and saying no, the sky is really magenta.

It’s worse than that. In that science class, such a student would probably just be ignored and no harm done. My purpose here, however, is to fill in the gaps in the average American’s civic education with facts, with information about what’s really going on and how things really work. To debunk the sadly common myths about the law, like undercover entrapment or shouting fire in a crowded theater. So when someone starts insisting that the sky is magenta, I have to stop and make it perfectly clear that the sky is actually blue, so people don’t go away more ill-informed than when they came in. And when this results in more insistence that the sky is magenta, I can either waste a stupid amount of time explaining yet again that the sky is blue, or ban that person from the room entirely (both of which I’d rather not do), or simply try to exclude stuff about magenta skies and get on with the lesson.

And as for the folks telling you the sky’s magenta? Or the sources from which you’re drawing that conclusion? I think if you approached them with the same healthy skepticism you’ve shown for other statements and conclusions, you might find that they’ve been leading you astray. Because honest and true, the sky really is blue.

I have a very physical copy of the source, from which I directly quoted, in the comments which you deleted.

A Selection of Legal Maxims, Classified and Illustrated.
By Herbert Broom, LL.D.,
of the Inner Temple, Barrister-At-Law; Reader in Common Law to the Inns of Court.
Eighth American, from the Fifth London Edition, with references to American Cases.
Philadelphia: T.&J.W Johnson and Co., Law Booksellers, Publishers and Importers, 535 Chestnut Street. 1882.

If you are telling me that this is NOT a reputable source, neither does it contain lawful cases, or that those cases have been overturned. I respectfully demand you publish this opinion to the public reading your comic, and cite your own sources.

In the past I may have said things with less thinking, but this time I did not. Perhaps the sky is really green, but the world won’t see it for being taught for so long that the color is blue, which, linguistically, doesn’t even exist as a color in historical culture.

You’re responding to something from October. It’s December. (I know, I know, I really owe you guys a lot of pages. Life happened. Some good, some bad, mostly good. A thousand apologies!!) But I honestly didn’t commit to memory whatever you said that I trashed. You don’t get to “demand” anything here, respectfully or not, but if you want to persuade me that you had valid support for a proposition you’re going to have to (briefly, please) remind me what it was and what supported it.

I happen to think Broom’s Maxims delightful, and a helpful guide when looking for sources of ideas in early law. Believe it or not, I used it just last night to help me point some research in the right direction! But it’s a means to an end, not the end itself. Commentaries like this are never authoritative, but only point you to likely authority.

Maxims are not law, and they are not binding. Maxims are sayings that express a value, a principle of justice, the pith of a philosophy, but not an enforced rule. Some such values may be deeply honored, others get little more than lip service. Besides, values change, society matures, our experience broadens. A maxim that made good sense under Roman law or even early common law would have had little persuasive force in the common law during Broom’s lifetime. (Ironically, maxims would have had much more force in the early centuries of the common law, when it was forging new ground and preceding cases had zero precedential force. Back then, a judge looked to principle, not precedent. But by Broom’s era a judge could rue that his hands were tied by precedent that prevented the principled outcome. Ironic.) At any rate, like other period commentaries, Broom’s collection is useful not as an expression of binding precedent, but as a clue to how people once thought.

I’ll not bother to repost what it is I said. There is no insurance for it. I am glad you use Broom’s. I knew you would, which is why I quoted from it.

You say commentaries are never authoritative, but point to authority. What is authority then, I wonder? Is authority the actual cases themselves? Or is authority the reasonable principles behind the determinations of those cases?

You say maxims are not law. This is a case I would much rather present than any other. I firmly believe that authority itself is the principle behind it. Self-evidence is self-evidence, and it cannot be rejected without reason. Which reason, evidences itself.

No, the people are idiots, like they’ve always been. (The average IQ is 100 and sadly, that’s not enough.)

The founding fathers of the Republic of the United States knew that so they created an unelected, unreresentative and totally undemocratic organ called the electoral college, which really appoints the leadership and sets the tone for the country. The problem is that the electoral college has had some mighty poor material to work with since WWII and hadn’t had the balls to say: “No, go back and try again”.

We get self-anointed elites whose only requirement is that they set up a commercial system where they get enough time to get themselves out of their depth, so they ask for help from lobbyists and for money from everybody. Plato would be disgusted with the past few crops of ognorami. We’re supposed to select the best, instead we get supply-siders who just want control, of what they don’t know, but they want the people to buy just the stuff they make and not ask for anything. (You don’t like breathingn coal dust, tough. The Kock brothers got rich from spewing tons of crap into gthe air so you’ll just have to cough.)

Just wanted to say that the average IQ should always be 100 no matter how intelligent the average person is; the scoring system is designed such that the median score is always 100, and the standard deviation is 15 points.

Not just that, but the average IQ also goes up dramatically with every generation. We just keep revising upwards what counts as “100.” It’s called the Flynn Effect. Someone who scored 100 during WWI would get a 70 now — the cutoff for mental retardation.

Not that they were actually retarded, but because our brains rise to the demands we put on them. We’ve put ever greater demands on the average person’s cognitive abilites, and as a result the cognitive abilities we see are ever greater.

Well, that’s my take on the evidence, anyway. Prof. Flynn himself says it’s because we’re doing more abstract thinking, and IQ tests score abstract thought. Other people say it’s because of better nutrition. Others say it’s because we’ve been educating people better, and longer, and we’re also getting better at taking tests.

I’m gonna disagree with you. The reason for the current global wave of stupidity is because the world is getting better, and it’s getting better in ways that confuse and anger the people who are feeling left behind. Certain groups are reacting to a world that isn’t theirs anymore.

“On June 9th, 2014, the official Republican National Committee Twitter feed posted a Doge image macro mocking Bill and Hillary Clinton. The same day, the official Democratic Party Twitter feed replied to the tweet mocking the use of Doge as being “as dated as your policies” (shown below).”

“We, the people,…” makes for nice propaganda, but no, it was not the people, or even the white males, who established the country. That was the decisions of the individual states. [The point that the Constitution was ratified by conventions rather than by legislatures is also only a propaganda point. The legislatures had to call the conventions, thus giving their approval, and the reason for conventions was tactical, avoiding many opponents and other difficulties that way, rather than based on any principle that set people over legislature.]

“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish, and declare, That these United Colonies are, and of Right, ought to be Free, and Independent States.”

Sounds to me like it was under the “Authority of the good people of these Colonies” that independence arose, without disparaging the Legislatures of the several Colonies. Propaganda or not, the legal effect should be the same for the words used, IMO; that The People were set over the Legislatures forever.

But what does the people being set over the legislatures mean in practice? It doesn’t mean the right to elect our leaders, we already had that through the several states, at least the land owners did. It doesn’t mean the right to propose and ratify initiatives or any other form of direct democracy. The U.S. constitution has no passages allowing direct democracy. It doesn’t mean the right to overthrow the government and start over with a new constitution. The civil war is a very clear precedent showing that there is no right to cessation or insurrection.

Conquerors get to make the rules. Civil war didn’t work because, unlike the Revolution, the seceding side lost. The Principles in the Declaration of independence however, should still rule, if you take the threat of overwhelming force out of the opposing side. Minus a tyranny, the right is unnecessary, and with a tyranny, the right is an imperative duty for all men, regardless of the ultimate outcome. “The only thing necessary for the triumph of evil, is that good men to do nothing.”

Doesn’t that imply that whoever has overwhelming force is the de facto leader of the realm? So the people being set over the legislature is meaningless because the side that wins the war still makes the rules so might still makes right.

Obviously. De facto is de facto. And might will always make “right” as long as it can terrify a people into submission.

Hence why the Constitution never permitted for a standing army. Hence why the people were meant to be the militia. Hence why were are in the straights we are today. Hence why people need to stop fearing and do what is actually right instead of what is de facto right. Regardless of the consequences.

I don’t know what Constitution you’re reading, but the President was made Commander-in-Chief of the Army (and Navy) that you’re saying the Constitution doesn’t provide for in Article 2, Section 2 of the Constitution.

We’re going to cover this in just a few pages, actually. But the tl;dr is that one of the arguments against the Constitution was that a standing army was an amazingly bad thing, that standing armies tended throughout history to empower tyrannies, to be wielded against the people they supposedly protect. “No standing armies” was a common slogan during the Revolution. But one of the primary purposes of the Constitution in the first place was to ensure national defense, and frankly leaving it up to over a dozen independent state militias was a recipe for defeat. They had to have an army (and thus had to fund it, and thus needed tax power, and thus needed representation to justify taxation, and that meant…). But everyone knew the historical dangers of a standing army being used against the citizenry and undermining civil rights. So the framers of the Constitution gave it a 2-year lifespan–its budget had to be voted on every two years by Congress, which gave the people (through their representatives) the power of dismantling the whole damn thing if it started getting too big for its britches.

It was a pretty smart compromise. And through the mid-20th-century, their original vision of a small standing army that could expand as needed in time of crisis worked well. And the military draft ensured that the army really was part of the citizens it protected, and not a separate entity. That all changed in the second half of the 20th century and through today. Now the soldiers are professionals, not draftees. And the military hasn’t really had a mass demobilization since WWII. (Even after Korea and Vietnam, we still kept the military at full wartime strength to deal with Cold War demands.) It’s led to a well-trained, successful professional army that does its job very well. But it’s also led to a bloated bureaucracy, and an inertia in military spending regardless of which party controls the purse, meaning the 2-year lifetime in theory has become a perpetual lifetime in practice.

Then again, perhaps Librarian’s referring to the Posse Comitatus thing. The phrase basically means what you think of when you think of a posse in the old west–citizens the government (sheriff) could call on to enforce the law, by force if necessary. In the first decades of the U.S., the army got used a lot for policing, enforcing domestic laws. The army frankly hated being used this way, and so did the people, and in 1878 the Posse Comitatus Act prohibited that from happening any more unless the President specifically ordered it. With the War on Terror, we’re seeing this erode. And I’ve seen people bring this up as part of an argument against our increasingly militarized police forces. But the mistake people make is thinking the Act prohibits standing armies on domestic soil, when all it does is say you can’t use those armies for domestic law enforcement. Another common mistake is to think it’s a constitutional provision rather than an act of legislation.

We’ve discussed this before. I love the give-and-take, the disagreements, the questioning, debating, etc. I happily welcome comments that are uninformed and misinformed. But I draw the line at outright disinformation.

And every now and then you’ll cross that line. I’m not trying to be a jerk about it, but if I allowed those comments then I’d feel obliged to post something each time, correcting the disinformation, and I just don’t have the time to do that or continue with the inevitable disagreement that would ensue. I barely get enough time to work on this as it is.

It’s not personal, and as you see I do welcome your comments that don’t stray into the more outlandish errors. But like I said last time: my house, my rules. There are tons of other sites out there where such comments are not only welcome but encouraged. You do have a forum for those views. Just not this forum.

But the mistake people make is thinking the Act prohibits standing armies on domestic soil, when all it does is say you can’t use those armies for domestic law enforcement.

Unless I’m mistaken, it’s even a bit more limited than that. I’m pretty sure it only says you can’t use a federal army for law enforcement. If a state wants to use its National Guard or State Guard for law enforcement, it gets to do that as long as state law says its OK.

As I understand it, posse comitatus applies to National Guard if they are used under their Federal authority (10 USC). If they are used strictly under their state authority, they can be used according to local state law (generally as directed by the governor, but I won’t pretend to be knowledgeable about all 54 states and territories legal loopholes and quirks.) Some interesting loopholes (or possibly convoluted workarounds to circumvent the law, depending on who you ask) have come into effect during some incidents where federal funds are directed to the state National Guard as compensation for use of military equipment during a federal law enforcement action, in which state-authority National Guard equipment and manpower is placed under that same federal law enforcement agency (eg, the Ruby Ridge and Waco incidents).

I heard that the north deliberately baited them, by arming and manning the federal forts which were located within the southern states, which the states wanted to claim for themselves, and then waited for the states to lose their cool.

“Baited” is probably too strong a word. The North was looking for an excuse and the South wasn’t interested in avoiding one, if that could even be done. Given that, war was pretty much going to happen, and the spark that started it would have just happened elsewhere

I mean, they’re federally-owned forts deep into Southern territory. If you think the federal government is illegitimate then anything short of tearing them down and leaving, which would essentially recognize the Confederacy’s sovereignty, is going to seem like a “provocation”.

Just the opposite of Brexit. Brexit was the inhabitants of a sovereign nation declaring the wish to leave an alliance. This was an alliance of sovereign nations uniting to form a new nation. The EU equivalent would be if all the member states surrendered sovereignty to the European Parliament.

The People of the Roman Republic were considered co-sovereign with the Senate. Of course in the Roman Republic the People were actually the legislature, and the Senate was a purely advisory body, so it doesn’t really resemble a modern society at all.

The British Parliament agrees that sovereignty begins with the people en mass, they just asserted that they _represented_ the people. From their point of view representing a six week old baby (who can’t vote to this day), or an American colonist (who was not permitted to vote) was no trickier a feat of mental gymnastics than representing a poor Englishman (who also couldn’t vote back then).

The same trick is done by Congress, most American citizens don’t vote (many can’t, some just don’t bother), but Congress considers that it represents all of them anyway. This is of course particularly evident if you live in the District itself…

That’s not sovereignty, but representation. Parliament’s sovereignty is not conferred, but rather inherent in Parliament. It represents the people, but its authority to do so is its own, legitimized first by its wresting power from the monarch, and legitimized now by its continued exercise of sovereignty unchallenged ever since.

The problem with that distinction is that the people in an abstract whole can’t speak. Because of this the people can’t exercise sovereignty. Only some individual or group claiming to represent the people can exercise sovereignty. It seems to me that whatever group exercises sovereignty is sovereign, be it the king, parliament, congress, or whatever.

What differences would I observe between worlds where the US people are sovereign and the US government is sovereign.

If you don’t think “the people” can speak, you haven’t been paying attention.

It’s more a philosophical idea than a legal one – instead of claiming the right to rule from divine providence or simply as rulers, we claim it is granted from the citizens. In practice, if we claimed some other source of sovereignty, I’m sure we’d come up with pretty much the same government. But the idea of “We the People” is important, because it’s a huge defining aspect of American culture.

Um… while this is a lovely patriotic sentiment, Nathan, I fear that your historical knowledge isn’t quite as broad as your legal knowledge. Athenian democracy, as established some 2000 odd years prior to America, was explicitly by and from the people just as much as American democracy was at the time of the Constitution – possibly more so, in as much as a much larger percentage of the public was directly involved in the government. It wasn’t by any means as democratic as America *today* – voting was property owning men only – but that was the case for America at the time too. And the power of the Athenian government at the time was, very definitely, from the people.

It seems disappointingly common for American schools to teach that America is the founder and inventor of democracy, and to either dismiss or just quietly leave out the several millenia of progress on which your country was built in favour of a myth of American exceptionalism, that the Founding Fathers were such unique paragons of righteousness that they forged democracy out of thin air.

But it’s not true. ‘Never before in history had that ever been the case’ ignores… well, not just the Athenians, and the Magna Carta, but the Althing of Iceland, the explicit instructions in the Quran that Muslims should make major decisions by democratic vote, the Polish and Russian veche, and plenty more decision making processes that all derived their authorities directly from the populace, not from any king or warlord, or from the institution (many of the things I’ve cited above could in no way be considered a separate institution in which power could be vested, even as far as the English Parliament is, and I do feel the distinction you’re drawing there is very much splitting hairs in the first place). “The ultimate authority came from the population. Not from individuals, mind you, but from the collective whole.” is a statement that could apply to any of them just as easily as to that first Congress, and the idea that they were all “imposed” from above by a king, warlord or however you mean the word “lawgiver”… well, it’s just not true in the slightest.

I’m sorry to interrupt your otherwise extremely nice comic with a long historian’s rant, but this is a depressingly common attitude among Americans and I don’t like to see something that I’ve found extremely interesting and informative otherwise peddling ahistorical ‘American exceptionalism’.

Athenian democracy . . . was explicitly by and from the people just as much as American democracy was…

Not true. Athenian democracy was imposed from above, whereas the American Constitution stood or fell by popular vote of those who would live under it. The people of Athens and the other historical democracies didn’t come together and decide to have a democracy. The boss aristocrat told them this was the way it was gonna be.

Nor is anyone saying that America is the founder and inventor of democracy. The founders themselves, as well as their opponents, were well versed in the democracy of Athens and the republic of Rome (as well as the important difference between a democracy and a representative republic), and in fact their views on the classical tradition underlay much of their debate. They had fought for independence precisely to secure to themselves the rights of Englishmen that had evolved since Magna Carta (see my earlier historical section on the development of the right against self-incrimination). Beyond the classical and English representational governments, there were also the democratic cantons of Switzerland and other institutions requiring popular say.

One thing that was novel was the fact that this republic would span so many different populations. The only democracies that had ever worked worked precisely because they were small populations with common mores and beliefs. Even the Roman Republic was quite homogeneous. But the republic proposed for America would incorporate dramatically different populations from each of the various former colonies, whose mores and beliefs and goals were not only different but even at odds with each other.

You’ve missed my point. The idea is not that America invented democracy, but that that the form of government itself would be decided by the people. That truly had never happened before. Every other democracy had been imposed by lawgivers, rather than adopted by popular vote.

You’ve also missed the point on sovereignty. Having a vote isn’t sovereignty. And the idea that sovereignty would now actually lie in the people rather than the ruler or institutions was also completely new.

But as someone who regularly interrupts his own comic with long historian’s rants, I welcome them from others. No need to apologize.

>You’ve missed my point. The idea is not that America invented democracy, but that that the form of government itself would be decided by the people. That truly had never happened before. Every other democracy had been imposed by lawgivers, rather than adopted by popular vote.

The Roman Republic, and more specifically, the office of the Tribunate of the Plebs, which was founded after the common people threatened to secede and demanded representation.

No, democracy in fact was ancient. It was the standard form 20,000 years ago and more. That it was not formalized or written up doesn’t change the fact that these were democracies where anybody might be in charge and nobody could count on getting his way.

And the distinction Nathan clearly makes (I thought) is that “the people” made the decision to be a representative democracy, and not a ruler, as was the case in Athens. If you want to split hairs, the better argument is if the USA is a democracy or a republic and what that means. We’ve been trying to figure it our for over 200 years and still haven’t done so…

Or, is a democracy even practical now that nation states have grown so large? If we want to look at a “true” democracy, we only need look at California and its multiple Propositions. Do we really want that type of governance as a model? Do we want mob rule?

I’ll agree that this at least skirts a lot of claims that could be problematic, from “American invented -real- democracy” (hardly) to “popular sovereignty as a political theory was invented at this meeting” (couple centuries too late), but it also skirts some fairly accurate ones.

As I understand it, we’re talking about the political theory of popular sovereignty and a government formally paying lip-service thereto (whether it truly happened, or indeed ever has or will truly happen, is open for debate). Undoubtedly, Greek and early Rome had a form of popular sovereignty, but the theory wasn’t codified until at least the 17th century or so and was tied up pretty hard in notions of modernity, being based on conceptions of the state that differed markedly from the Greek notion of the polis. Athenian thinkers weren’t promoting their government as a form of empowerment of the masses (and many actually thought it was bunk and a way for the poor to take advantage of the rich).

Yes, the American constitution was really just a small step on existing historic precedent, but the step as described above (formally acknowledging popular sovereignty) is a pretty significant part of that step. They didn’t invent the concept, but they made more of an effort to use it than was precedented.

I think people are missing the point. The new idea isn’t that the government serves the interests of the people, or represents the people as chosen by voters, or even that the government functions with the consent of the people. The idea is that the legitimacy of the government, their “right to govern”, was derived form the citizens. Not from the military, not from lineage, not from God, not from simply having been in charge. We the People give the government the right to govern.

It’s more of a philosophical shift than anything that has any legal meaning. If the preamble declared “We the Congress” or “We the United States”, we’d probably have the same government. But simply the idea that the people are in charge of the government, and not the other way around, was a unique idea at the time, and remains a uniquely American ideal (even if we don’t put it into practice nearly as often as we should…)

While this is off-topic for the current chapter, I got curious after reading about the recent Bundy acquittal in Oregon. Are you ever going to cover jury duty in greater detail, and will you mention jury nullification? Are you, as a lawyer, even allowed to admit jury nullification is a right that exists?

When we get to Advanced Criminal Procedure, I’ll have a whole chapter on juries, how they and the law’s views of them have evolved over time, etc. And yes, jury nullification will be a big part of it. Criminal juries historically did have the power to vote “not guilty” if a law was unjust or if a conviction would result in injustice. The jury was thought of as the “conscience of the community.”

In the early U.S., it was also seen as a check against unconstitutional laws. Jurors proudly refused to convict people charged under the Alien and Sedition Acts, for example. These were enacted under President Adams, and were used to prosecute newspapers critical of him. (Think now to Hillary’s bugaboo about Citizens United being allowed to criticize her, and Trump’s similar wish that the First Amendment didn’t let people criticize him, and you’ll see that some things never change.) Ironically, Adams himself accepted jury nullification as a necessary power of the jury, saying “it is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

Jury nullification continued to be an important check on unconstitutional laws throughout the 19th century, as well as laws that were contrary to the values of the community, being used to acquit people who had violated the Fugitive Slave Ave and also early alcohol prohibition laws.

As we started to transition into the 20th Century, however, judges started shutting it down as views on the role of the jury changed. At the time of the founding, the jury was seen as judge of both the law and the facts. Our first Chief Justice, John Jay, writing for a unanimous court, spelled it out neatly in the case of Georgia v. Brailsford, 3 U.S. 1 (1794). He explained that, while traditionally it’s the role of the jury to decide what the facts of the case are, and the role of the judge to decide issues of law (as judges presumably know the law better), nevertheless that’s only a rule of thumb. The law, however, is that both the law and the facts are “within [the jury’s] power of decision.”

By the 1890s, however, the rule of thumb had come to be seen as the rule itself. (This happens a lot. I’m working on a law review article taking a deep dive there.) Courts saw the jury’s job as finding the official version of the facts, to which the judge could then apply the applicable law. Jury nullification, then, came to be seen not as an important civic right, but as a dangerous transgression on the role of the court, and a frustration of justice. As a result, trial judges routinely instruct juries that it’s their job to decide the facts, but the law is up to the judge. Lawyers who insinuate that a jury might say “not guilty” even if the facts fit the elements of the crime, are going to get shut down or worse. In the courts where I usually practice, a juror who indicates that he might nullify is going to be excused as if he said he would not be able to follow the judge’s legal instructions.

Even telling people about jury nullification pisses off prosecutors. In 2010, the feds arrested a guy for handing out fliers in front of the federal courthouse here in Manhattan, and prosecuted him for jury tampering under 18 U.S.C. § 1504. In 2015, Michigan prosecutors charged a guy with obstruction of justice for doing the same thing there. Both guys faced jail time, but the judges in both cases dismissed the charges.

That’s because, although judges don’t like jury nullification, and don’t like jurors being told about it, nullification is still not against the law, and (so long as you’re not trying to influence a juror in a specific case) the First Amendment protects telling people about it.

Indeed, though trial courts and prosecutors don’t like it, higher appellate courts continue to recognize that jury nullification is a power that juries have. Writing for the Supreme Court in 1920, Justice Oliver Wendell Holmes put it plain–though the judge should explain to the jury the law that applies to the facts, “the jury has the power to bring in a verdict in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135 (1920). The Supreme Court and other higher courts have continued to accept this to the present day. See, e.g.U.S. v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) (“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge. * * * The jury system operates in fact so that the jury will not convict when they empathize with the defendant, as when the offense is one they see themselves as likely to commit, or consider generally acceptable or condonable under the mores of the community.”) As recently as 2013, the Supreme Court has repeated its maxim “A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government” from the case Duncan v. Louisiana, 391 U.S. 145 (1968) (Google Scholar link to the cases using that phrase).

HOWEVER — and this is a big however — these same courts are perfectly fine with ruling that the jury doesn’t need to be informed of its power to nullify. In fact, they tend to espouse the rule that juries shouldn’t be told they can nullify. The general idea is that if we do that, we’ll have anarchy. People will get acquitted, not because the jury thinks the law is unjust or unjustly applied, but because they don’t like the police, or they feel that “too many young black men are already in prison,” or because one rogue juror — rather than the community — thought the offense shouldn’t be against the law. If juries aren’t told they can nullify, then nullification will only happen in real true instances of injustice, unconstitutionality, abuse of government power, or violation of community values.

Accepting that the jury has this power, while at the same time insisting that they not be informed of it, is seen not as a compromise, but as a well-balanced equilibrium. We don’t get chaos and anarchy contrary to the will of the people (as expressed by the legislature that passed the laws… and I guess as also expressed by the unelected bureaucrats who enacted the vastly more numerous regulatory crimes). But we do get a “safety valve” for the truly exceptional cases. If we tell the jury that they can nullify, it will throw this whole equilibrium out of whack.

Courts back this up by insisting that jurors already know they can do it, anyway. “Everyone knows,” from the osmosis of popular culture, that juries have the prerogative to acquit when a conviction offends their conscience. Formally telling them they can, then, could be taken as a strong hint that they should. It will make them consider it when they shouldn’t. It will be a validation for those who would use it for the wrong reasons. No, no, we ensure that it’s only used for the most egregious cases by letting the popular culture create the general perception that it can happen, and ourselves refusing to tell jurors outright.

I’m not making this up. You can’t make this up. That’s what courts actually say.

(Aside: this isn’t the only area of our jurisprudence with such an inane rule. As you may recall from an earlier chapter, courts generally prohibit evidence informing juries of how inaccurate and unreliable eyewitness testimony is. Why? Because we don’t want jurors to hear that, and besides “everyone knows” anyway, so the testimony is unnecessary.)

Sadly, the theory fails when confronted with the facts. Everyone doesn’t know. It is frankly routine for jurors to be incredibly distraught by their guilty verdicts, convinced that they had absolutely no choice but to say guilty because the elements of the crime were satisfied. That’s what the judge and prosecutor — and maybe even their orientation video — firmly instructed them. Those who indicated that there was even a chance that they might not follow that instruction had been dismissed. The truth is that jurors do not know or understand that it is their power, right, and civic duty to vote “not guilty” in cases where a conviction would be unjust. Jurors of good conscience are routinely devastated by the awful decisions they felt compelled to make. Meanwhile, real human beings are right now suffering awful years of lengthy prison sentences, their lives ruined, their families destroyed, by convictions nobody of good conscience would have wanted.

Look, runaway juries are a truly bad thing. When I was a young prosecutor in Manhattan, we used to joke ruefully with our counterparts in the Bronx that the only time they could get a conviction at trial was if they were prosecuting cops. It was an exaggeration, of course, but the kernel of truth was that people were so unsatisfied with the justice system in that community that truly guilty people were going free, not because their individual conviction would have been unjust, but as an expression of larger, deeper failings. But it wasn’t a solution to the entrenched problems. Police saw it as proof that they were the opponents of the community, rather than its protectors, a justification for their “us vs. them” mentality. Two of my first trials in that period that ended in hung juries, where every single juror was convinced of guilt, but members of oppressed communities didn’t want to see another young black man go to jail. Their words, not mine (and hence my use of the phrase earlier). Nullification is not a safety valve for systemic failures. It’s for individual justice. Trials are individual cases about individual people. Defense attorneys who want to change the system through individual cases both fail at it and wrong their clients. Juries who want to protest or change the system through individual cases also fail and do a disservice to justice. This is the chaos and anarchy judges fear. They didn’t just fantasize about it.

The jury’s prerogative of nullification is a powerful component, not only of our justice system, but of our constitutional heritage. From the earliest juries in medieval England to the modern courthouses of our postindustrial society, the jury’s role as the conscience of the community has served as the last resort of the people to protect their rights and their justice from the might of the state, against the caprices and failings of those who wield that power. The power to say “not guilty” is absolutely necessary to democracy and the rule of law. Without it, tyranny is all to easy. The next John Adams could succeed in imprisoning anyone who said unkind things about it.

But when it the tool is used for the wrong task, it undermines that very democracy and rule of law.

So what’s the solution?

Easy. Tell juries as a matter of course, in those orientation videos so proud of the jury’s important role in society, that one of its important roles is to act as the conscience of the community. Inform them, in plain language, that the jury can act as a safety valve and acquit even when the facts technically fit the crime, when to do so in this particular case would offend our human decency. But warn that this power must not be abused. Warn that voting not guilty just because you don’t like the fact that something’s against the law, or as a form of political protest, steals justice from our justice system. In voir dire, do eliminate for cause anyone who thinks the offense shouldn’t be against the law — the jury’s role in defeating unconstitutional laws has probably been transferred to the courts ever since Marbury v. Madison et al. Do eliminate for cause anyone who would abuse the nullification power. But don’t eliminate anyone who promises to use it to prevent individual injustice. Do let lawyers argue for it and against it. And do instruct them before deliberations on its appropriate use.

Sure, judges might screw it up. Courts would rule on those instructions. We might even develop a line of cases refining our jurisprudence on precisely when jury nullification is desirable. Instead of being a worrisome secret, it might become a subject of popular debate and scholarly thought. And people serving on juries will proudly and confidently see that justice is done.

If juries can vote not guilty even if the elements of the crime were met to ensure justice over legality, does the reverse also apply? Can the jury vote guilty even if some of the elements of the crime were not proven; the typical case of “We know he’s guilty even though the prosecution could not prove it”? If not, why not?

It does happen. Sometimes juries even get confused and render verdicts that are internally inconsistent — saying not guilty on one charge but guilty on another that has all the elements of the first. Typing on my phone, so short answer is defense asks judge to have the jury try again, or seek a new trial, or dismiss the inconsistent guilty verdict. The law varies from state to state. Nobody likes it when this happens, but plenty allow it anyway. The feds, for example, would act as if each charge was its own separate indictment and so therefore what one jury thought about the elements in crime A has no bearing on what this hypothetical other jury said about crime B. I’m putting it badly, but that’s the gist. An irrational fiction to overcome an irrational result and secure the conviction the government wanted. Frankly typical of federal court, one of the hardest places for an accused to receive justice. Other states follow this reasoning or something similar to let the guilty verdict stand. But others like Maryland take the principled and rational stand, and say such a guilty verdict is illegal and cannot stand. As with everything, YMMV, depending on your jurisdiction. (Often enough, you get illogical verdicts because the jury’s trying to split the baby–they think the guy did something, but the govt really didn’t prove he did this, so they throw the prosecution a bone by giving a guilty on what they thought was a minor offense. It usually isn’t. Especially in courts where evidence of everything else gets considered at sentencing, the guy winds up just as fucked as if it had been guilty on everything. Prosecutor offices sometimes knowingly take advantage of this tendency by charging not just the crime, but every lesser-included crime, to give the jury more ways to throw them those bones. Again, YMMV.)

I was under the impression that, if a jury came back with a guilty verdict that wasn’t consistent with the facts, the judge could overturn it. They couldn’t do the same with a not guilty verdict though. Was I wrong?

Inconsistent with the facts is different from inconsistent with their own verdict.

Still on phone, so quickly:

Inconsistent with verdict = Jury acquits you of possessing a gun, yet convicts you of assault with a gun. Both can’t be true. They have clearly mis-applied the law to the facts they found. Some courts accept the verdict, some reject the guilty one.

Inconsistent with facts = No reasonable juror could possibly have thought this element was proven on the evidence presented. We defense lawyers are supposed to move for such counts to be dismissed before the jury even hears them, and I’ve even had judges agree now and then. If somehow the judge let it slide, but then became convinced (or an appellate court decided) that no reasonable juror could have drawn that conclusion from that evidence, then that verdict will be overturned. Due Process requires that convictions be based on sufficient evidence.

If you move to eliminate for cause anyone who would use Nullification against a law they do not think should be a law (hence they feel the law itself is unjust), how is this any different than allowing the tyranny to run ruck-shod over the individual unjustly?

Proper jury nullification is the dissent of all the jurors, not that of a lone juror. The voice of the community, as opposed to an individual difference of opinion. When there’s a law the community as a whole considers just, we don’t want some individual outlier screwing up a verdict because she won’t follow that law. So on the surface it might seem fine to make the effort to exclude any isolated individuals who believe a given offense shouldn’t be against the law and won’t convict someone for it. We do this with drug crimes all the time — judges want jurors to promise that they will follow the law even if they personally don’t like it. Those who can’t make that promise get excused. Problem solved.

But what if the general community shares that dissenting value? Or if that’s the value of a minority community within the larger one? Excluding the apparent outliers one at a time would, in effect, wind up excluding everyone BUT the outliers. The process itself would be silencing opposition. It would be a systematic silencing of populations without an influential political voice. Not a silencing of debate outside the courtroom, but a silencing of the voices that matter most, where the rubber meets the road as that law gets applied to a real person in a real case. In the extreme, but not at all absurd scenario, it could indeed as you suggest become a force for tyranny of the powerful over the people.

Where the majority all share the same opposition to a law, it’ll be a lot harder to dismiss everyone from jury service. People may even pay lip-service to the judge’s instructions but disregard them once they realize everyone else in the jury room feels the same way. Nullification will happen now and then. Not as often as perhaps is warranted — there’d still be the fact that jurors usually won’t realize or believe that nullification is an option — but there’s not as much chance of systemic silencing of the majority view.

But silencing the voice of underrepresented communities? That already happens. Just one example: It’s a sad fact that we in the law don’t always like to admit, but there are offenses on the books right now that are against the law because back when those laws were written it was something lawmakers associated with black people. Seriously. Back in the day, we criminalized activities that, within certain black communities, were seen as perfectly normal and harmless. Because it was foreign, unfamiliar, “coarse,” scary, what have you, to the white people passing those laws. And right here in NYC, there are absolutely cases where black people are prosecuted for breaking a law that, as I’ve heard more times than I can count, “isn’t my law; that’s white people’s law.” There’s a reciprocal sense that, because the law doesn’t represent the community values, it doesn’t apply there either. A sense the police and courts are swift to disabuse one of. I can’t even imagine what it must have been like back in the worse old days.

So you have an offense that absolutely does not comport with a minority community value. But because it’s a minority community, with little political voice or influence over lawmakers, that law is still on the books. And because it is a minority community with little political voice, any juror opposition to that law is perceived as an outlier, and just cause for exclusion from a jury. Anyone who breathes a hint of “that’s not our law” will be off that jury in a heartbeat. And so we have systematically excluded or silenced or muzzled the voice of a community — the relevant community, at that — from the voice that will speak for the community.

We haven’t just done this to inner-city black people. We’ve done it to communities all over the country whose culture is different from that which predominates outside their communities, and who lack the political voice to change the law.

To be specific, crack cocaine is punished as if it were 18 times its weight in powder cocaine, specifically _because_ crack is seen as a black drug. They don’t want to have cops making felony arrests of Wall Street brokers.

So enough crack to be “personal use” if it were powder would automatically get you charged with intent to sell (which itself is a blatantly unconstitutional construction, but try telling that to the Supreme Court).

So what do we do with this reality then? Where the law doesn’t reflect the community it purports to govern, and any disagreement with the enforcement of that law, de facto, results in systemic silencing of its detractors. When it appears in both Legislatures, and in courts, and most favorably in the Executive Offices. What do we do? What Can we do?

That’s what defense attorneys are for. Our critical function is to make sure the government followed the rules and obeyed the law. If we don’t do our job, then there’s nothing stopping them apart from their own individual consciences. If someone is charged with a nonexistent crime, or is wrongly charged with an actual crime, it’s our job to get it thrown out. If prosecution would cause real injustice, it is up to us to argue, persuade, and fight for the just outcome. If the police or the prosecutor violated the law in gathering evidence and prosecuting the case, it’s our job to fight for suppression and sanctions. If their evidence is improper or insufficient, it’s our job to fight it and prevent a conviction. And when the judge sides incorrectly with the government despite our best efforts, it’s up to the defense attorneys to take it to a higher court to correct the error. When we don’t do our job, all we do is enable tyranny of the righteous at best, and encourage tyranny of the corrupt.

I’m not gonna lie. Police do systematically make bad arrests in some jurisdictions. (Usually because they actually have evidence of a crime, it’s just that they broke the law to get it. But sometimes local precincts may have a warped culture of making arrests on trumped-up charges. Especially in areas where they see it as a war zone, the local community is the enemy, and their duty is to incapacitate the enemy rather than to serve and protect that community.) And there are some prosecutors’ offices where the policy is to ignore the actual role of a prosecutor, and instead zealously prosecute every arrest regardless of whether it’s the right thing to do. And there are some judges who are incapable of seeing the government and its witnesses as anything but angels who can do no wrong.

But your premise is wrong. Neither police nor prosecutors nor courts systematically apply bad law. When they screw up, it’s because they exercised poor judgment, or erred in their application of the law, or mistakenly crossed a line, or flatly disobeyed the law. None of that involves “bad law.” The closest anybody comes to applying bad law is when police mistakenly think something is against the law, when it isn’t. That’s super rare, but it happens. IIRC, there was a case on precisely that issue recently. But again, that is the rarest of the rare, hardly systematic.

I believe I could make a strong case that there is in fact a systemic issue of applying bad law in courts. Not meaning to say that this systemic issue is a deliberate conspiracy, other than possibly in the highest of echelons, but that it is the direct result of a significant amount of fundamental ignorance, and inbred governmental bias. The fact that, if true, would demolish the whole system as it exists today.

It goes back to the very foundations of law in this country, but I’m certain you would never allow such an argument to be presented here.

You know what? I’ll make an exception now. Just this once. But only on these conditions:

(1) You have to cite your sources. Not just to demonstrate that you didn’t make it up off the top of your head, but so the rest of us can evaluate those sources and your reading of them. If you claim there’s a law, or a contract, or a treaty, or a rule, then you have to show it to us.

[Note that primary sources are the only cites that really count. In other words, for a legal principle or definition, it’s the actual law itself that controls — caselaw, statutes, constitutions, treaties, etc. It has to be binding law, by the way — not stuff that’s been overruled, nullified, or amended. Other primary sources would be firsthand accounts and contemporaneous records of events. Secondary sources are just someone else’s interpretation or analysis or compilation of the primary sources (or even of other secondary sources), and aren’t really persuasive. Tertiary sources like encyclopedias and dictionaries are barely worth mentioning. They’re just attempts at distilling the other sources. Obsolete tertiary sources have even more limited usefulness.]

(2) You have to be willing to accept the possibility that your sources might not be as reliable as you thought, or that your reading of them might be entirely accurate. I get the strong sense that you’re personally invested in your positions, that it’s very important to you that they be true. If you need your ideas to be true so much that you can’t countenance contrary facts, then there’s no point. If that’s the case, you’re better off finding a safe-space echo chamber of like-minded people.

(3) Extraordinary claims require extraordinary evidence. Alternative versions of history, contrary to the documented history generally accepted by diverse independent observers, are not proved by surmise or inference, but by verifiable facts.

If you can accept those conditions, then here’s your chance. Knock yourself out.

Jonas says

If I’m remembering right, the entire preamble was written by one guy on the Committee of Style, so was the significance of “We the People” understood at the time, or did people only realize its significance in retrospect?

omigod omigod omg i am TOTALLY shipping the rule against perpetuities and the economic loss rule. see, they’re so complex and misunderstood, and everyone thinks they’re just stupid (especially e.l.r.), right? but they find each other? and it’s like they balance each other out, and they totally get each other. the genius is that the sex is where they have the most conflict. i mean, r.a.p. is totally tantric, of course, but e.l.r. would rather just pay for a quickie with attractive nuisance on the way home, BUT when they finally figure it out the final sex scene is literally going to be climactic.

By the way, the recent delay is a good thing. On the one hand, I’ve been interviewing with a number of law schools for tenure-track prof jobs in recent weeks. I know it’s a long shot because I was never on the academic track, and I have no illusions of my chances, but I did already make the short list at one very good school, so I’m crossing my fingers. Got another interview at lunch today, actually, with a school that really gets the purpose of law school. Wish me luck!

On the other hand, while inking this last page I had (what I hope is) a brilliant idea for reorganzing this chapter and the next one, so I’ve been happily reworking it, rewriting it, and fleshing out gaps in my research. That’s done now, and drawing will recommence tomorrow. I won’t get to finish it this weekend, though, because I’m a scout leader now, too, and I’m taking the troop camping to teach them rock climbing. But so long as none of them need to be airlifted out, I should be able to continue after work on Monday.

That’s a long update, but I figure you and everyone else deserve to know why the hell we’re still stuck on this page.

I cringe at some of the stuff back there. But once it’s posted, it’s done. I’ll fix a picture if it was confusing, and obviously any factual errors (it happens). But if I went back and retconned entire pages or sections I’d never get new ones out.

I would have gone with the prohibition on executives taking short-term profits on their company’s stock paired with the rule of Frederick: the right to undo any stock purchase before the settlement date. Individually they are both totally obnoxious and pointless. But combined they are the cutest couple ever.

It will come up first near the end of this chapter when we get to the drafting of the Bill of Rights. Then we will cover it more in depth when we cover the 8th Amendment as it works nowadays, in a later chapter.

Re: twitter comment about Secretary of keeping Trump off Twitter. Rather we need a secretary of keeping him on Twitter, approximately 25 hours a day. That seriously reduces his chance to do anything stupid [or intelligent if you insist, but I’ll take my chances.]

Hmm, you might be on to something there. But I’m worried about leaving it up to one person.

What if, instead, we set up an underlying system that (if robust and diligent and not eroded by shortcuts or factions) might serve to keep the President from doing anything stupid, regardless of who’s manning the desks?

Heck, while we’re at it, might as well have similar safeguards against a crazy Congress and kookoo courts.

I don’t know. It seems like only a matter of time before everyone’s pals, and throwing things through on a “mandate”.
We need some way of throwing most of them out every so often, too. Every two years seems about right.

BTW. Still pursuing a professorship, or is post-election hooliganism taking your time?

Good idea. But we can’t throw them ALL out at the same time. Need some continuity etc. How about we stagger some of them in three six-year groups?

Oh yeah, definitely pursuing professorship. All schools I’d be proud to be a part of. Most of my spare time working on some bleeding-edge research for the upcoming job talks. I still realize it’s a long shot, but as a wise man once said…

Nathan, according to your permission, and accepting your conditions, I will commence rehearsing my case, but first, I want an assurance that your conditions apply to both sides; myself and any who would debate against me or otherwise say my interpretations are wrong.

Your Conditions:
1) You have to cite your sources.
2) You have to be willing to accept the possibility that your sources might not be as reliable as you thought, or that your reading of them might be entirely accurate.
3) Extraordinary claims require extraordinary evidence.
(I assume you intended, in 2, to say, “…might [not] be entirely accurate”)

I accept.

My case however, will likely be long and in a number of parts. I have not before, put it all to paper, and so it might take me a while to rehearse as well, and not be presented all at once.

Caveats:
1) As my case is one of a foundational issue, many of my sources will be foundational, ie. regarding the foundations of the law, such as historic documents, and historical law (which might possibly have been subsequently overturned.)
2) Since we are dealing with the foundations, it must be assumed that an interpretation, even if, upon it’s face, it might seem to have been overturned/amended, it might not, in fact, have been so completely done. I will endeavor to provide reasonable doubt as to why the assumed overturning/amending may not be as complete and comprehensive as first thought.
3) I do not have an extensive law library, so much of my argument resides upon reason and that which, I believe to be, reasonable constructions.
4) I am not trained in the presentation of legalities, so forgive me if my presentation is not as pretty or thorough as it could be. If there is a concern with understanding, I will do my best to address and explain it subsequently.

I have accepted your offer, and provide as an amending counter offer all of the above written. Is this agreeable, and do I have your consent to proceed?

That’s not how contracts work. This isn’t a contract, it’s just me giving you limited permission to post some comments, and I retain full discretion to moderate those comments as I see fit. Neither of us has any obligations to do a damn thing.

So go for it. Keep it on this page, don’t spill over to subsequent pages, but make your case here as best you can.

No need for a law library, by the way–Google Scholar is your buddy, and Archives.gov has fantastic resources. They contain primary sources galore, and plenty of useful secondary sources as well. Literally everything you’ll need is online nowadays, and usually for free.

Pro Tip 1: When there’s an authority we like, lawyers are expected to make the effort to research how other authorities have used it since–is it still relied on, or is it limited or even disparaged? I recommend this to everyone. It’s a modest investment of time that avoids so much unnecessary loss of credibility, disputes, etc.

Pro Tip 2: Researchers commonly learn of a source because someone else cited it first. That’s perfectly okay. Don’t, however, make the equally common mistake of relying on that other person’s citation. Do yourself a favor and read the source yourself. It might not really say what they claim it says.

I thought you were Offering to Grant or Permit to me certain protections to my comments regarding the aforementioned subject matter, in Consideration for my Acceptance of certain restrictions on those comments, in the presence of public Witnesses. I understand your legal training was focused on legal defense, as opposed to civil contract, but from the elements present, the form of it certainly looks like a Common Contract to me.

If you are not offering me something I did not already have, and rather asking for further restriction of my comments, there is no Consideration, and thence, no Offer to even begin with, in spite of it’s overt form, and as such your Grant is repugnant on it’s face. If I do not have protection in my commenting of the discussed subject matter, there is no point in Dealing with you beyond the purview of limited privilege. Why would I expend such efforts to research, cite, and develop a large written case here, when I do not have your Promise that it will not be deliberately removed within the hour of my posting of it, or at any future time? What was the point in offering me something I already had, as if it was something beyond what you were usually willing to Permit?

This is why I knew you would never allow such a case to be made here. Deceitful.
And I fully expect you to moderate this comment the moment you see it. But that’s fine, as long as you have read it, my case is already proven. Bad law indeed.

This nonsense again? Seriously? You never had a contract. You have permission. There’s a difference.

Suppose a kid’s complaining that her mom never lets her hang out with friends. So one day the mom relents and says fine, you can go, but not if you’re going to bother Old Man Jenkins again. What happened there? The mom gave permission. Nothing more. Neither she nor the kid have any contractual obligations. The kid is simply allowed to go hang out, or not. But that permission isn’t unlimited: she’s not allowed to go out if she’s going to go bother Old Man Jenkins.

Obvious, I know. It seems strange to even have to spell it out.

You’re no different. You want to post a comment here that violates my rules. I’ve said fine, I’ll allow you do it this once, but only if xyz. See what happened there? That was me giving you permission. Nothing more.

What hadn’t you had before? Permission. What obligations do you owe me? None. What obligations do I owe you? None. You’re free to take advantage of my permission or not. And if you try something I didn’t allow, then guess what: I won’t allow it!

But what if I callously decide not to allow it, even though you’d done xyz? That’d be what we lawyers would call a dick move. You can judge for yourself whether you think I’d pull a stunt like that.

I know you’re not stupid. I know you get this. You’re just throwing around inapplicable legalese in the hope that somehow the right combination of magic words will confer, out of thin air, rights and obligations that never existed. Senseless. Pointless, too — it’s like you’re trying to pick a fight, over something that never happened, in order to gain something you already have.

Believe it or not, I’m still willing to let you make your case. You want to persuade me that the law our courts systematically apply is bad law, that this is enabled by widespread ignorance of significant truths and by inherent bias. You want to persuade me of a truth that, if known, would shake our system to its very foundations. You still have my permission to do so. I’m giving you one final opportunity. So for the last time: Knock yourself out, post your arguments right here, and just don’t exceed the scope of what I’ve allowed.

You shouldn’t be fretting needlessly over what is and isn’t allowed. My conditions are really really easy. I don’t want you to waste your breath on b.s., fantasies, or inventions. So (1) Cite your sources, whatever they happen to be. (2) Don’t insist something’s true just because you want it to be true. (3) If you assert a contrary version of history, you’re really going to have to point to some solid factual evidence that backs it up.

That’s all. Not hard. Easy. Go for it. Last chance.

(But more nonsense in this vein? Straight to the trash. No, that wouldn’t be a dick move on my part. It’d be a response to one. You don’t my permission to do that.)

@Nathan,
“You never had a contract. You have permission. There’s a difference”.
I’m a little curious about this difference between a contract and a permission agreement. Is it something to do with the meaning of “consideration”?

My limited research suggests that there are 3 main components to a contract:
* An offer and acceptance
* A meeting of the minds
* All parties must provide consideration (a gratuitous gift is not a contract).

The first two components are (apparently) there between you and Libarian. The question I suppose is whether Libarian is providing consideration. One might argue that the consideration is a post that complies with your conditions but maybe I’m stretching it a little.

A contract is more than a mere promise. Is it more than a mere agreement. It is a promise that the courts will actually enforce, and impose a remedy if it’s violated. It’s no longer just a moral obligation, but a legal duty.

One can make an excellent argument that the enforceability of contracts is a hallmark–if not a cornerstone–of the Rule of Law. A society flourishes when obligations are predictable–when the law applies to everybody equally regardless of status or power, government officials do their job evenly without having to be bribed, individuals and organizations and police and kings are all equally accountable under the law, and contracts are enforced. Without the rule of law, you can’t rely on anything unless you’re wealthy or powerful enough to make it happen, and so there’s no investment in the future. Why invest in a venture or grow a business or build anything long-term when there’s no guarantee that at the end of the day the other guy’s going to hold up his end of the bargain? When you think of a corrupt country, a “backwards” medieval feudalism, a tyrrany, a land of vendettas or strongmen, or a failed state, what you’re seeing is what happens in the absence of the Rule of Law, what happens when contracts cannot be counted on.

So if the enforceability of contracts is a necessity for a successful civilization, then what makes a promise enforceable as a contract?

When asked that question, many businessmen and bankers will answer “the UCC.” That’s a set of statutes governing commercial transactions, which (in the interest of predictability and reliability) has been adopted in nearly identical form by each of the U.S. states, and which courts apply in a fairly uniform way regardless of jurisdiction. But that’s not the answer. For one thing, it only covers commercial obligations–selling goods, leasing equipment, bills of lading, security interests, bank transactions, and the like. That’s a lot of contracts, but it’s only a specific subset of them.

The answer to “what makes a promise enforceable” is “did you just create a situation where, if you later fail to hold up your end of the bargain, then the other guy’s going to get royally screwed, and it’ll be your fault?”

There are a number of ways a promise can meet this test. And first-year law students often spend an entire year wrapping their heads around all the rules, exceptions, and remedies. There’s a lot there, and it’s a great way to gain insight into how the law works, and how to clearly articulate basic “gut” principles of fairness. Contracts is absolutely a course I’ll be covering in this series, and I promise [ha] it’ll even be fun.

In the meantime, however, the basic kernels that make a promise an enforceable contract are these:

You knew you were making a promise, and you did so of your own free will.

It sure looks like you intended to be bound by your promise.

The other guy’s going to rely on your promise, and you know it. He’s now going to give something up, in the expectation that you’ll hold up your end. He’s going to do something he didn’t have to do, or refrain from something he could have done.

If you don’t keep your end of the deal, there has to be some way to undo the harm the other guy incurred by trusting your word. Either by paying the guy some money to restore him to the way he was, or by going back and doing what you were supposed to do.

It’s not a one-sided promise. There’s a mutual agreement between you and the other guy, where each of you is exchanging something of value.

The deal’s fair to both sides.

Promises can be enforceable from the moment they’re made, or they may only become enforceable after some conditional event occurs, or they may only become enforceable once the other guy’s completed performance of his obligation to you. What most people think of as a contract–mutual promises, each made in exchange for the other (“because you promise to do X, I promise to do Y” and “because you promise to do Y, I promise to do X)–are typically enforceable from the moment they’re made. But you can have a promise to pay for a service that won’t become enforceable until the service is performed. You can have “promissory estoppel,” where there wasn’t an explicit offer and acceptance, but you said something, you should have expected the other guy would act to his detriment in reliance on your statement, so now you’re not allowed to claim there wasn’t a contract (you’re “estopped” from raising that defense).

“Offer, acceptance, and consideration” is a basic formula that’s useful to know, but as you can see, there’s really more going on, both deeper than that and broader.

Consider the following:

A farmer wants to sell his land. He says he’s looking to sell it for more than a million dollars, but only to someone who’s going to keep it as a working farm. The county says they’ll pay him two million for it, if they can turn it into a park instead. The farmer says no. The county sues.

A man tells his wife he is going to take her to dinner for her birthday. She buys some makeup and a new dress in anticipation for the event. He knows her well, and knew she’d probably do that. On the day of, however, he changes his mind. She sues.

Mikey asks Joe if he can mow Joe’s lawn for ten dollars. Joe says sure. Mikey comes over with a futuristic laser lawnmower. Joe shouts at him “not with that thing, get out of here!” Mikey sues.

Sports team owner tells the city “I bet if you built us a new stadium, a lot of businesses and jobs would be created all around it.” The city builds the stadium, and instead the existing businesses all around it fail. City sues.

Going through old newspapers online, Reader finds an ancient ad from a local car dealership offering to sell any car on its lot for the low low price of $5,000. There are no conditions mentioned in the ad. Reader takes the ad to the dealership and demands a car for $5,000. The dealership refuses. Reader sues.

Two college kids are making out after a party. They take a break to sign a contract, each saying they consent to have sex with the other. Just as things get hot and heavy, Student A expressly and clearly withdraws consent. Student B sues.

Builder enters into a contract to construct a house for $100K. It’s a routine job, but halfway through, builder stops working and says it wants another $100K to finish the job. Unable to find a replacement on such short notice, homeowner signs on the dotted line. When the house is complete, homeowner refuses to pay the extra $100K. Builder sues.

Marsha asks if she can come inside George’s house. George says okay, but only if you take your shoes off outside. Marsha agrees, and promises to take her shoes off outside. As Marsha starts to take off her shoes, George says no, on second thought, he won’t allow her inside after all. Marsha sues.

I do you a really big favor, saving you a million dollars on a business deal, just out of friendship. A year later, you say “I want to repay you for that. I’m going to cut you a check for ten grand.” You never do. I sue.

Wife tells husband she’s going to take care of giving their kid’s teacher a Starbucks card for her the holiday gift. Husband was going to get the teacher an expensive book instead, but now refrains. Wife fails to give the gift. Husband sues. Teacher sues. Starbuck sues. Bookstore sues. You sue them all for making you read this drivel.

“A farmer wants to sell his land…” The county hasn’t actually gotten to a point where they expect that the farmer will sell the land to them. Each has made an offer, but the other did not accept. (No meeting of the minds, if I’m using the term right.) No contract.

“A man tells his wife he is going to take her to dinner for her birthday…” The husband wasn’t really getting anything in return – it was a one-sided promise. (For the sake of argument, we’re assuming the “Diamonds: She’ll pretty much have to” trope is not in play.) No contract.

“Joe asks if he can borrow Anne’s lawnmower…” Joe hasn’t been hurt – he didn’t really give anything up. He hasn’t spent any resources, and he can borrow or rent or buy a lawnmower like he would have if Anne had said no. No contract.

“Mikey asks Joe if he can mow Joe’s lawn for ten dollars.” Same deal as Joe and Anne. Mikey’s not really out anything. No contract.

“Sports team owner tells the city…” The owner never actually promised to do anything, he just gave his opinion on what he thought the likely results of building a stadium would be. No contract.

“Reader finds an ancient ad from a local car dealership…” At this point there’s been no specific promise made to Reader. The dealership gave notice that they were willing to engage in this transaction, but they haven’t actually made the offer to Reader. No contract.

“Two college kids are making out after a party…” … seriousl? That’s kind of gross. You have no damages (like, seriously, five minutes and an adult magazine.) And there’s no legal way to undo the harm (the law is not going to allow you to have sex with someone against their will.) No contract and don’t ever speak to me again. D:

“Builder enters into a contract to construct a house for $100K…” Yeah, no. The second deal had no consideration – Builder had ALREADY agreed to construct the house in the first deal, so Homeowner wasn’t getting anything in the second one. No contract.

“Marsha asks if she can come inside George’s house…” I’m starting to hate these people. Can a civil court judge give the death sentence? Anyways, Marsha, you haven’t actually given up anything meaningful. You can put your shoes back on, it’s not difficult. No contract. (This also looks a lot like the “permission” stuff you were talking about earlier.)

“I do you a really big favor, saving you a million dollars on a business deal…” Unless you went ahead and paid for Little Timmy’s surgery on the expectation that you were about to get $10k from me or something, there’s no promissory estoppel going. And you never put any conditions on the original gift – you can’t go back and claim I was bound by a promise we made at that time. Whatever, I’m a flake, but there’s no contract. Separate incidents.

“Wife tells husband she’s going to take care of giving their kid’s teacher a Starbucks card…” Pretty sure I have a case here on the binding precedent of “Fuck You v. You Are All Terrible People”. But otherwise, no, no, no.

Interestingly enough, you didn’t spell out the difference between a contract and a promise (other than to discuss enforceability) and, in fact, you tended to use the two terms interchangeably.

My understanding is that a gratuitous promise is not an enforceable contract, even when the promisee suffered a loss because they undertook an action which relied on the (broken) promise. This is because the promisor didn’t receive any value (consideration) from the promisee. It could also be pointed out that an agreement between 2 persons is not binding on a third person nor can the third person compel the 2 persons to comply with the agreement – even if they are a beneficiary to the agreement.

With that in mind, I would say that (with the exception of the builder) none of the scenarios that you outlined constitute an enforceable contract either because there was no meeting of the minds or one of the parties didn’t provide consideration. If any of the people have a claim for damages then it would be for a malicious or negligent act of the other person and not because a contract existed.

It is interesting that you say that a contract must be “fair”. Although this is a principle in many countries, I thought it had no place in US law (although some provisions in a contract – like servitude – may be ruled void because they are unconstitutional). One you sign a contract, you are absolutely on the hook unless you can prove extreme duress (like somebody holding a loaded gun to your head until you sign).

I’m not going to re-read my whole answer to double-check (life’s too short!) but I’m pretty sure I didn’t use “promise” and “contract” interchangeably. But apparently I didn’t make it clear that the difference between a mere promise and a contract is enforceability. That’s the whole thing. A contract is a promise that is legally enforceable. What makes a promise enforceable is the whole realm of contract law.

Fairness absolutely is one of the core principles underlying law on whether a promise is enforceable as a contract. But the law isn’t looking at the fairness of the outcome, but rather the fairness of the process. It’s not so much whether you ended up with a good deal, nor whether the other side was being kind or reasonable. It’s more about whether the situation was fair, so that you could make up your own mind whether to accept that deal or not. When you have a clear agreement, and were in a position to make up your own mind, courts will be reluctant to second-guess whether your mind was different from the language you agreed to. So just because you wind up getting the short end of the stick, that doesn’t necessarily mean the law will say it was unfair. However, if you’d agreed to that deal based on the other’s guy’s misrepresentations or threats, then that would be unfair. Another example of unfairness might be the other guy sneaking in a term you hadn’t agreed to.

I would have thought that a contract was an agreement between 2 or more people.

That might leave something like a promissory note in a grey area since it only has one signatory. However, since the drawer acknowledges “value received”, it is definitely legally enforceable.

When my mother wanted to place a lien on my brother’s property, he had to sign a statutory declaration stating that he owed my mother money and charged that debt to his property. I don’t know if that is a contract in itself but he was acknowledging that a contract agreement had been made in the past.

Well, that’s the difference between a mere agreement and a contract, too. Enforceability. Contracts are the subset of agreements which are legally enforceable.

Generally, though, what’s enforced isn’t the agreement, but the promise inside it. The agreement is what makes that promise enforceable, specifically whether the nature of the agreement has those traits that make a promise legally binding.

And just as not all promises are contracts, not all agreements are contracts. If I invite you over for dinner, for example, and we agree you’ll be here at 7:30, and you never show up, we absolutely had an agreement, but it’s not one that’s legally enforceable as a contract.

The other things you mentioned can be enforceable things (or can help enforce something else), but they’re not enforceable agreements, so they’re not contracts.

Promissory notes aren’t a grey area. They’re a different area entirely. A promissory note isn’t the same thing as a contract. It’s not conditioned on the other guy doing anything. It’s more like a check, which is just an instruction to your bank to take money out of your account and give it to someone else, without requiring the other guy to do anything for you in exchange. Now, just as you can use a check to pay a contractual obligation, you can pay it with a promissory note as well, but that doesn’t make either the check or the promissory note a contract themselves. (And yes, they can certainly be enforceable by law. But lots of things are enforceable that aren’t contractual. Courts will enforce promissory notes and checks as “negotiable instruments” — just think “money substitutes” — if the right conditions are met.)

You’re right to bring up promissory notes, however, because they are a perfect example of a promise that is enforceable, but not because it’s contractual. So it’s not only true that not all promises are enforceable by law, but not all legally enforceable promises are contracts. If you drew a Venn diagram, it might have a big circle containing “promises,” a medium-sized circle inside that for those that are “enforced by law,” and within that two smaller circles for “contained in contractual agreements” and “other.”

A lien can be created by a contract (and by other things), but the lien itself isn’t a contract. A lien is a creditor’s interest in a debtor’s property, preventing that property from being transferred, to ensure that the property remains available if needed to repay the loan. A declaration or acknowledgement of debt isn’t a contract, either, but a document that acts as evidence that the debt really exists. The creditor can use it to get a court to enforce collection of that debt. It can relate to a contract, but it doesn’t have to, and it isn’t a contract itself.

Hope this helps. (And how the heck did we get off on this nifty tangent?) For now, I’d better give the remaining finer points of contract law and commercial paper a rest until the comic catches up to this topic. There’s much more engaging ways I could be getting these points across, and I think we’ve covered the basics pretty thoroughly.

I’m ecstatic that my comment resulted in a very useful and informative discussion of contracts, for other readers.

A. You knew you were making a promise, and you did so of your own free will.
Nathan, you wrote,
“You know what? I’ll make an exception now. Just this once. But only on these conditions:”
This looks to me like a willful offer of promise to perform/not perform some action, on your own part, in return for my performance of an act consistent with your conditions.

B. It sure looks like you intended to be bound by your promise.
In deed, written before public witness.

C. The other guy’s going to rely on your promise, and you know it.
I absolutely was relying upon that promise.

D. He’s now going to give something up, in the expectation that you’ll hold up your end. He’s going to do something he didn’t have to do, or refrain from something he could have done.
I absolutely intended to do so. To write my case while remaining constrained unto your conditions.

E. If you don’t keep your end of the deal, there has to be some way to undo the harm the other guy incurred by trusting your word. Either by paying the guy some money to restore him to the way he was, or by going back and doing what you were supposed to do.
By ensuring the posting of my case, which I would have presented, was insured by your promise of exception from moderation. Or unmoderated if you broke your word. Or monetary compensation for the time lost preparing the case which was then deleted. Or whatever a reasonable judge may feel to be reasonable compensation for the breach.

F. It’s not a one-sided promise. There’s a mutual agreement between you and the other guy, where each of you is exchanging something of value.
My time preparing and posting my case, for your exception of it from moderation. Appear to me to be value offered on both sides, and mutual assent. I even formally acknowledged my acceptance of your initial terms.

G. The deal’s fair to both sides.
Is there an imbalance somewhere? Please show me.

Now, considering I have not yet performed my part, being the preparation and presentation of my case according to your conditions, there is no obligation on your end, yet, to insure it against your moderation. Had I just gone immediately in and started presenting, rather than attempting to negotiate for better terms through my counteroffer, the obligation should have kicked in immediately. Because I didn’t, you appeared then to have attempted to absolve yourself of the responsibility of insuring the exception, seeking to void the agreement.

You make great motions to show a contract can only be called a contract if it is enforceable under law in a court. What makes it enforcible? Is it not Acceptance by that same court to enforce it? So what really “enforcible” means, is, whatever one side can get a court to consider enforcing. And then what is enforcing? Does it require the police power of a state, or merely the common assent between the parties to mutually enforce it betwixt themselves? I am enforcing right now the contract you reject having ever made.

Am I wrong? What say the Great Court of Public Opinion?

There was already one reasonable person who believed it to be a contract besides myself, so reasonable doubt yet exists. But he is now Trusting in your Title, Education, and social position, to tell him the truth in a matter of which you are in personal contest.

Welp, there you go. Remember where I said I was giving you one last chance to make your case, and not to waste that opportunity with more of the same? Yeah, that really was your last chance. Looks like you blew it.

The window of opportunity has closed. If you want to explain how the law is something other than what the courts actually apply, that it’s not what the cases and statutes and regulations and rules say but something that higher powers are apparently keeping secret from everyone, then you’ll have to do that somewhere else.

It’s a pity, I was kinda looking forward to it. Oh well. Moving on.

[FWIW, this exchange reminds me of the kind of pro se (representing themselves without a lawyer) litigants who are always undermining their own cases. When given an opportunity to be heard on issue X, they refuse to say anything about X, and instead waste everyone’s time insisting on irrelevant Q, F, and J. Or worse, imaginary Ƹ, ʡ, and Ҩ. This always ends badly. Most judges do go out of their way to give pro se litigants extra leeway to make their point, as nonlawyers are often unaware of the precise requirements or confused about what’s going on. But sometimes enough’s enough. Too often, you get a guy refusing to deal with the matter at hand, babbling about legal and procedural fantasies that don’t apply in this courthouse. They’re either delusional, or in the wrong and trying to weasel out of it, or both. When faced with this kind of litigant, judges get extremely frustrated, if not infuriated. At best, a judge will just stop the proceeding. Often enough, they’ll find the guy to be in contempt. And of course, when it comes to deciding issue X, it’s not as if the litigant gave them any reason to side in his favor. It’s never a winning strategy. Yet every day, someone’s out there proving yet again the old aphorism about those who have a fool for a client. Please don’t do this if you ever find yourself in court.]

Bill says

I noticed that timestamps were removed from the comments a while back. I checked the page when there were 100 comments and now there are 101 (before this one). Without timestamps, it can be hard to tell what the new comments are that I haven’t read.

Okay, the number of comments is going up and there don’t APPEAR to be any new ones (though with this many, I’m not sure if I’m just missing them in the morass.) Is this an artifact of the comment screening system?

Can you believe there are zero WordPress plugins that let readers choose how they prefer to view comments? I can set the default view in the dashboard, but that’s it. (I changed the site over to WordPress a while back, and it’s done nothing but cramp my [ha] style ever since.)

Not that this would prevent me from making my own solution. With ajax and javascript or jquery or heck even html5 I bet I can make a couple of buttons that call one or the other php function to the header, and save the reader’s preference. It’s not rocket science. But though I can tap out a dissertation on my phone in a heartbeat (I’m on my phone now, as usual), it takes me for…EV…er to assemble even a modestly complicated script. So though I bet I can do it, I doubt I’ll be able to add it until January at the earliest.

But if I do get around to it, which would folks prefer… oldest at the top, or newest? Personally I think oldest is easier to follow, but then again I personally think nested threads is even easier, so who cares what I think?

And I got rid of time stamps because some readers felt shy about adding to a conversation that had taken place a year or two before. The conversation never ends, and I want them to feel welcome to ask and share and debate and go back to add new ideas months later and keep that conversation going.

Of course, the SC said “no” (ignoring the 10th Amendment and the fact that the constitution doesn’t deal with secession) but the reason given was interesting: Chief Justice Salmon Chase wrote that the “Articles of Confederation” created a “Perpetual” union so that secession could never be permitted. Once Texas joined the states, it became part of this “perpetual” union forever!

Surely this means that the constitution derives its authority from the Articles of Confederation and not “We the People”? If taken to its logical conclusion, you could never amend the constitution to permit secession because the Articles of Confederation won’t allow it.

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